ZeroPaid Interviews Russell McOrmond 2 – Canadian Bill C-32 (Part 2 of 3)

We are currently in the process of interviewing Russell McOrmond, a well known observer of Canadian copyright and policy consultant. You can read part 1 here.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

In the previous part of our interview, we discussed the complexity of copyright, the length of copyright and anti-circumvention provisions found within Bill C-32. We continue with our interview:

ZeroPaid (ZP): A lot of people focus on the digital locks of music and software, but another aspect of copy protection that gets less attention is the locking down of physical devices as well. Could you give us an example of the locking down of a physical device and how does this legislation affect that?

Russell McOrmond (RM): I have been giving a “I am holding 4 things in my hand” presentation for years, including to a lawyer who wanted to understand this issue from a technical perspective. It comes down to translating what technical measures claim to do into technology that is based on science rather than science fiction.

Content alone cannot make decisions. It can’t decide to be copied or not, decide to be available on only 5 devices, or other such contractual terms that people like to talk about with technical measures. What you can do is use technology such as cryptography so that the content can only be accessed by persons and/or devices with the right unlocking keys.

What this means is that the content is locked with an access control technical measure, and is then unlocked by a device that obeys those contracting terms. In order to enforce these terms in devices (rather than under the law), the devices are locked down such that those operating them are not able to be in control of them. This is fine when we are talking about a kiosk when the operator and the owner are different, but is a cause of great concern when these locks are being used to protect third parties against the owners of the devices.

None of this is necessary. If technical measures were protected in contract law, then the balance of contract law would then apply to the use of technical measures to protect those contracting terms. Some uses would be protected, some unenforceable, and some illegal just as is the case with traditional contract law. All the legitimate interests of each of the parties to those contracts can be protected.

What we have is technology vendors falsely claim to be selling “copy control” software, when they are in fact offering a system involving locking people out of their own technology to protect contracting terms. These contracting terms aren’t even disclosed to the owners of that technology, or the people purchasing content. Hidden or otherwise undisclosed clauses would not be protected in contract law, and certainly should never be protected in copyright law.

One example is Apple, who lock the various iPhone, iPad, iPod devices such that they, and not the owner, hold the keys. They claim that it should be illegal for the owner to change the locks on their own devices. They abuse peoples confusion about the connections between copyright, contract, property and other laws to justify this offensive business practice.

I often wonder how locking the owners out of something that they own is all that different than theft, and consider the business practise of locking owners out of their property to be immoral. It is something I believe should be made illegal, not legally protected.

A law closer to the language of the WIPO treaties wouldn’t protect this practice. In the short term even the USA DMCA doesn’t protect this practise. Bill C-32 would legally protect this practise, given circumventing access control technical measures and even providing tools to change the locks on what we own are being made illegal.

ZP: Following the US copyright office saying that exceptions can be made in the anti-circumvention provisions in the US, the Canadian government said that they’ll be looking at this development closely and legislate accordingly. Do you think that the exceptions introduced in the US go far enough? Also, what affect does this development have on the Canadian governments image that they respond so quickly to a change in the US legal development especially after the government just got out of having a nation-wide consultation with the Canadian public?

RM: The country that introduced the concept of “access control” technical measures, falsely claiming it had something to do with copyright, was the USA. Given it appears the Conservative party simply cut-and-pasted this non-copyright related concept into Canadian law from the USA, it makes sense that they would need to follow the harm that this is causing within the USA. It demonstrates they aren’t doing any of their own research or analysis.

I believe the consultation was only for show. When the Conservative government tabled C-61 the opposition parties suggested that adequate consultations hadn’t been done. They held a consultation and then tabled C-32. Now the opposition can’t talk about a lack of consultation, and discussing how the bill disregarded the consultation brings us into discussing complex policy that doesn’t fit into a sound bite.

The Conservatives can claim they are just listening to advise, and trying to have the best law possible. Unfortunately they are following the advise of representatives of the USA, a country that is a Copyright laggard. While Canada was under the Berne convention (WIPO treaty #1) since its coming into force in 1887, the USA didn’t ratify until 1989. Only a few years later the USA is then taking their inadequate understanding of Copyright and trying to push treaties through WIPO, namely the two 1996 treaties where the anti-circumvention legislation comes from. While the more mature countries rejected much of the USA’s proposals on technical measures, including the back-door protection of “access”, the Conservative government hasn’t bothered to study or understand this history.

The Conservative government, as well as some other MPs, believe the lies of the lobbiests who claim that it is Canada that is a copyright laggard with weak copyright law compared to the USA, when the opposite is true.

ZP: There was a very noticeable push from some organizations to ratify the WIPO treaties. In your FAQ, you mention that the WIPO treaties are a mixed bag. Do you think it’s possible to ratify the WIPO treaties in a favorable way in your view and is such a thing likely that you can see?

RM: The two 1996 WIPO treaties do not allow reservations, meaning ratification is all or nothing. You can’t include in copyright law things which you consider good, and reject the things you feel are bad.

That said, it is possible to ratify the 1996 WIPO treaties in a way that is much less harmful than either the Conservatives or the Liberals have proposed so far.

One obvious thing is to protect technological measures in the correct laws, such as contract, e-commerce and property law. This would avoid most of the harmful consequences due to technical measures and copyright being separate concepts. The WIPO treaties don’t require that all changes be made to the Copyright act, and the USA has made use of similar flexibility when it comes to moral rights when ratifying the Berne convention.

WIPO treaties are all modifications to previous treaties, with the copyright treaties being modification of the Berne convention. Canada could also work within WIPO towards new treaties which could fix many of the problems seen in the two 1996 WIPO treaties. This would mean that the harmful aspects of ratifying these two treaties would be short-lived, and fixed by ratifying more modern treaties. These two treaties are outdated, and older than current Canadian copyright law which the lobbiests falsely claim is antiquated.

We are currently in the process of posting our interview. Please stay tuned for part 3. You can find part 1 here.

Drew Wilson on Twitter: @icecube85 and Google+.

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